Court of Appeals of Texas, Fifth District, Dallas
BULLET TRAP, L.L.C. F/K/A BULLET TRAP, INC., Appellant
WATERPROOF POSITIVE, LLC D/B/A ENERGY ROOFING SOLUTIONS, Appellee
Appeal from the 199th Judicial District Court Collin County,
Texas Trial Court Cause No. 199-04389-2016
Justices Myers, Molberg, and Carlyle
Trap, L.L.C. f/k/a Bullet Trap, Inc. appeals the judgment in
favor of Waterproof Positive, LLC d/b/a Energy Roofing
Solutions (ERS). Bullet Trap brings three issues contending
(1) the evidence was legally and factually insufficient to
support the jury's verdict on ERS's lost profits; (2)
the trial court erred by awarding attorney's fees to ERS
under section 38.001 of the Texas Civil Practice and Remedies
Code because Bullet Trap converted from a corporation to a
limited liability company the day the jury rendered its
verdict; and (3) the trial court erred by awarding ERS
attorney's fees for opposing Bullet Trap's
counterclaims. We affirm the trial court's judgment.
Trap is a shooting range in Plano, Texas owned by Christian
Putnam. Putnam was also the president and part owner of the
Frisco Gun Club. Brandon Johnson was vice president for
marketing of the Frisco Gun Club, and he also worked at
Bullet Trap. Ernest Arnesen owned a roofing company, ERS.
Johnson and Arnesen attended the same church, and they knew
2016, a hailstorm damaged Bullet Trap's roof causing the
roof to leak. After talking to Johnson, Arnesen agreed to
look at Bullet Trap's roof. Arnesen inspected the roof
and saw it had sustained significant hail damage. As Arnesen
and Johnson were talking in front of Bullet Trap, Putnam
drove up. Arnesen told Putnam that the roof had suffered
significant damage, and Arnesen advised Putnam to file a
claim with his insurer. Arnesen told Putnam that his company
might be able to replace Bullet Trap's roof for the
amount of the insurance proceeds, and Putnam signed a
contract with ERS.
contract provided that Bullet Trap would file a claim with
its insurer for the hail damage, and ERS would provide
information supporting a finding of damage to the roof. If
the insurance company accepted the damage claim, ERS agreed
"to perform the work approved by the Insurance Company
for an amount not to exceed all insurance proceeds received
by [Bullet Trap] in settlement of its claim." Bullet
Trap promised to "retain ERS as the exclusive roofing
contractor to perform the Work as approved by the Insurance
Company" and to "pay to ERS the Proceeds upon
[Bullet Trap's] receipt of same." When Putnam signed
the contract, neither Putnam nor Arnesen was aware that the
deductible on Bullet Trap's insurance policy was $25,
insurance adjuster inspected the roof with Arnesen, and
Arnesen pointed out the hail damage. The adjuster agreed that
the roof needed to be replaced due to the hail, and he also
determined the hail damaged the HVAC units and the rain
gutters and that leaks in the roof had damaged the interior.
Arnesen prepared an estimate of the cost to replace the roof
and the gutters and determined the cost would be $212,
354.08. The adjuster accepted that estimate and also provided
insurance payments for damage to the HVAC units and damage to
the interior of Bullet Trap. The insurer paid Bullet Trap
$201, 903.29 for the damage to the roof, gutters, HVAC, and
interior. After reduction for depreciation and the
deductible, the insurance payment attributable to the roof
was about $155, 000. The insurance policy provided that the
insurer would pay Bullet Trap the depreciated amount, $37,
100.75, after the roof was repaired.
believed that under the contract with ERS, Bullet Trap would
not have to pay the deductible. Arnesen suggested that they
split the deductible and that Putnam use the portions of the
insurance payment for the interior damage and HVAC damage to
pay the deductible. Putnam refused to use those portions of
the insurance payment for the deductible, and he believed
Arnesen had promised that Bullet Trap would not have to spend
any money other than the insurance payment attributable to
the roof damage to pay for the roof replacement. Putnam sent
Arnesen a letter purporting to terminate the contract.
sued Bullet Trap for breach of contract. Bullet Trap filed
counterclaims for breach of contract, fraudulent inducement,
and violations of the Texas Deceptive Trade Practice-Consumer
Protection Act (DTPA). A jury determined that Bullet Trap had
breached the contract and that ERS's damages for lost
profits were $79, 919.73. The jury found against Bullet Trap
on its counterclaims. The trial court entered judgment for
ERS, awarding ERS the damages found by the jury. The court
also awarded ERS attorney's fees under section 38.001 of
the Texas Civil Practice and Remedies Code. See Tex.
Civ. Prac. & Rem. Code Ann. § 38.001(8).
OF THE EVIDENCE
first issue, Bullet Trap contends the trial court erred by
not granting its motion for new trial, motion to modify the
judgment, and motion for judgment notwithstanding the verdict
because the evidence was legally and factually insufficient
to support the jury's finding on lost profits. The jury
determined ERS's damages for lost profits were $79,
reviewing the legal sufficiency of the evidence, we consider
all the evidence before the jury, crediting evidence in
support of the verdict if reasonable jurors could, and
disregarding evidence contrary to the verdict unless
reasonable jurors could not. City of Keller v.
Wilson, 168 S.W.3d 802, 823, 827 (Tex. 2005); Morris
v. Wells Fargo Bank, N.A., 334 S.W.3d 838, 842 (Tex.
App-Dallas 2011, no pet.). If there is more than a scintilla
of evidence to support the finding, the evidence is legally
sufficient. Formosa Plastics Corp. USA v. Presidio
Eng'rs & Contractors, Inc., 960 S.W.2d 41, 48
(Tex. 1998). When the evidence offered to prove a vital fact
is so weak as to do no more than create a mere surmise or
suspicion of its existence, the evidence is no more than a
scintilla and, in legal effect, is no evidence. Kindred
v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). If the
evidence furnishes a reasonable basis for differing
conclusions by reasonable minds as to the existence of a
vital fact, then there is legally sufficient evidence, more
than a scintilla, to support the fact. Id. When
reviewing the factual sufficiency of the evidence, we examine
all the evidence and set aside a finding only if it is so
contrary to the evidence as to be clearly wrong and unjust.
Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402,
407 (Tex. 1998); Cameron v. Cameron, 158 S.W.3d 680,
683 (Tex. App-Dallas 2005, pet. denied). In conducting our
review of both the legal and factual sufficiency of the
evidence, we are mindful that the jury, as fact finder, was
the sole judge of the credibility of the witnesses and the
weight to be given their testimony. City of Keller,
168 S.W.3d at 819; Hinkle v. Hinkle, 223 S.W.3d 773,
782 (Tex. App- Dallas 2007, no pet.). We may not substitute
our judgment for the fact finder's, even if we would
reach a different answer on the evidence. See Maritime
Overseas Corp., 971 S.W.2d at 407; Hinkle, 223
S.W.3d at 782.
profits are damages for the loss of net income to a business
and, broadly speaking, reflect income from lost business
activity, less expenses that would have been attributable to
that activity." Examination Mgmt. Servs., Inc. v.
Kersh Risk Mgmt., Inc., 367 S.W.3d 835, 840 (Tex.
App.-Dallas 2012, no pet.). Texas law concerning recovery of
lost profits is well settled.
Recovery for lost profits does not require that the loss be
susceptible of exact calculation. However, the injured party
must do more than show that they suffered some lost profits.
The amount of the loss must be shown by competent evidence
with reasonable certainty. What constitutes reasonably
certain evidence of lost profits is a fact intensive
determination. As a minimum, opinions or estimates of lost
profits must be based on objective facts, figures, or data
from which the amount of lost profits can be ascertained.
Although supporting documentation may affect the weight of
the evidence, it is not necessary to produce in court the
documents supporting the opinions or estimates.
Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80,
84 (Tex.1992) (citations omitted); see ERI Consulting
Eng'rs, Inc. v. Swinnea, 318 S.W.3d 867, 876 (Tex.
2010) (quoting Holt Atherton). "Reasonable
certainty" of lost profits is not shown when the profits
claimed to be lost "are largely speculative, as from an
activity dependent on uncertain or changing market
conditions, or on chancy business opportunities, or on
promotion of untested products or entry into unknown or
unviable markets, or on the success of a new and unproven
enterprise." Tex. Instruments, Inc. v.
Teletron Energy Mgmt., Inc., 877 S.W.2d 276, 279
(Tex. 1994). "The calculation of lost profits must be
based on net profits, not gross revenues."
Examination Mgmt. Servs., 367 S.W.3d at 840 (citing
Holt Atherton, 835 S.W.2d at 83 n.1 (Tex. 1992)).
prove its lost profits, ERS used the following calculation:
Roof replacement amount approved by insurance
Gutters/Downspout Repair amount approved by [ins.
Total Insurance Approved Amount:
Less Materials and Labor
Materials (See attached)
Tax (on materials)
Less variable overhead costs